Citation Nr: 0534795
Decision Date: 12/27/05 Archive Date: 03/02/06
DOCKET NO. 03-23 620 DATE DEC 27 2005
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio
THE ISSUE
Entitlement to service connection for asthma.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
J. M. Macierowski, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1966 to July 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO).
FINDINGS OF FACT
1. The veteran has a current diagnosis of asthma.
2. The medical evidence does not show that the veteran's asthma is related to his military service.
CONCLUSION OF LAW
Asthma was not incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.CA. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 CF.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2005).
First, VA has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. 38 U.S.CA. § 5102; 38 C.F.R. § 3.159(b)(2). In this case, there is no issue as to providing an appropriate application form or completeness of the application.
- 2
Second, VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Prine ip i, 16 Vet. App. 183, 187 (2002). In this case, VA notified the veteran by a letter dated in May 2001 that VA would obtain all relevant evidence in the custody of a Federal department or agency. See Pelegrini v. Prineipi, 17 Vet. App. 412 (2004). He was advised that it was his responsibility to either send medical treatment records from his private physician regarding treatment for his claimed disabilities, or to provide a properly executed release so that VA could request the
I
records for him. The duty to notify the veteran of necessary evidence and of
responsibility for obtaining or presenting that evidence has been fulfilled.
Third, VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, for the reasons discussed below, the veteran's service department medical records are not currently associated with the veteran's claims file. His VA treatment records have been associated with the claims file... The veteran has provided authorizations, and his private medical records were obtained. There is no indication that other Federal department or agency records exist that should be requested. See Pelegrini v. Principi, 17 Vet. App. 412 (2004). Although the duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, a VA examination was not accorded the veteran in this case as none was required. See 38 C.F.R. § 3.159(c)(4). The veteran was asked to advise VA if there were any other information or evidence he considered relevant to his claim so that VA could help him by getting that evidence. He was also advised what evidence VA had requested, and notified in the statement of the case and supplemental statement of the case what evidence had been received. Thus, VA's duty to assist has been fulfilled.
Finally, to the extent that VA has failed to fulfill any duty to notify and assist the veteran, the Board finds that error to be harmless. Of course, an error is not harmless when it "reasonably affect(s) the outcome of the case." ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). In this case, however, as there is
- 3
no evidence that any failure on the part of VA to further comply with the VCAA reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See also Mayfield v. Nicholson, 19 Vet. App. 103 (2005).
It should be noted that the veteran's service department medical records are not available. There is evidence in the veteran's claims file that the service department medical records (SMRs) were requested by the RO in June 2001, mailed from the National Personnel Records Center (NPRC) in December 2001, associated with the claims file, and were considered in the RO rating decision in June 2002. However, the correspondence in the claims file indicates that the SMRs were lost while being transferred from the Columbus VA Outpatient Clinic (V AOPC) to the Cleveland RO. These records were discovered missing in October 2003. In August 2004, the RO requested that the veteran submit any SMRs showing treatment for respiratory or breathing problems. The U.S. Court of Appeals for Veterans Claims (Court) has held that, in cases where records once in the hands of the Government are lost, the Board has a heightened obligation to explain its findings and conclusions, and to consider carefully the benefit-of- the-doubt rule in our final decision. See 0 'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis has been undertaken with this heightened duty in mind. However, the case law does not lower the legal standard for proving a claim, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the veteran. See Russo v. Brown, 9 Vet. App. 46 (1996).
The RO has vigorously attempted to recover the veteran's service medical records. In October 2003, they contacted the Columbus VAOPC to request that a search be conducted of the Columbus medical files; in December 2003, the RO contacted the NRPC to determine whether a copy of the veteran's original SMRs had been retained; and in August 2004, the RO requested that the veteran forward any copies he may have retained of his SMRs to the RO. None of these attempts were successful in recovering the veteran's service medical records. Given the number and thoroughness of prior efforts to obtain SMRs, the Board believes that there is no reasonable possibility that further efforts to locate them would be fruitful and that such efforts are not required by the VCAA or by the heightened duty to assist under 0 'Hare.
-4
Subsequent to service, the veteran was admitted in September 1985 to a private hospital after reporting shortness of breath. He reported that his asthma developed after he had pneumonia in 1967. He provided a history of shortness of breath since 1967. He reported that he had a history of adenoids, and that he used inhalers for treatment of asthma.. Physical examination showed inspiratory and expiratory wheezing in all lung fields. A chest x-ray was negative for any active pulmonary disease. After five days of inpatient intravenous treatment, he was discharged from the hospital with a final diagnosis of severe bronchial asthma.
Private allergist treatment records from April 1992 through December 2000 show that the veteran underwent an immunotherapy regimen. During the initial. consultation, the veteran reported nasal congestion, wheezing, and shortness of breath. Physical examination showed normal throat, lungs, and skin. The impression was asthma and allergic rhinitis. Annual pulmonary function testing between 1993 and 2000 resulted in normal spirometry, except in 1996 when borderline pulmonary obstruction was found. Private internist treatment records from August 1999 through March 2001 show that the veteran continued an immunotherapy regimen from August 1999 to March 2001. Generally, during treatment visits, the veteran's lungs were clear to auscultation. However, in November 1999, the veteran reported wheezing. Physical examination found bilateral wheezing. The diagnosis was acute wheezing, and chronic obstructive pulmonary disorder.
A March 2002 VA clinical summary evaluated the veteran for shortness of breath. The veteran reported that he experienced allergy-induced asthma since military discharge in 1968. He also reported that he had been hospitalized for shortness of breath, but not in the last 10 years. He noted that he experienced shortness of breath after climbing one flight of stairs, but had no related chest pain or asthmatic attacks. He reported taking 2 different types of inhalers for his symptoms. The shortness of breath made it difficult for him to perform any prolonged activity or physical exertion. On physical examination, lungs were clear to auscultation bilaterally, without wheeze, rale, or. rhonchi noted throughout all fields. The diagnosis was allergy-induced asthma. The examiner noted that the veteran stated that his symptoms were fairly well-controlled with his regimen of medications and allergy
- 5
shots. Accompanying pulmonary function tests showed no significant obstructive deficit and no significant response to bronchodilators; an accompanying chest x-ray was within normal limits. VA treatment records from September 2003 through October 2004 show continued diagnoses of asthma, but no specific acute instances.
Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for the veteran's claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed .inservice disease or injury and the current disability. Hickson v. West, 12 Vet. App.
247, 253 (1999).
The medical evidence does not show that the veteran's asthma is related to his military service. The first postservice evidence of record that shows treatment for the veteran's asthma is dated in 1985, 13 years after the veteran was separated from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (finding that the passage of many years between discharge from active service and the medical documentation of a claimed disability is evidence against a claim of service connection). Additionally, although the veteran has a current diagnosis of asthma, there is no competent medical evidence in the record that relates the asthma to the veteran's time in service. The private emergency room records show that the veteran reported that his shortness of breath began in 1967. Although the veteran is competent to report symptoms that are readily observable, such as shortness of breath, his statements are not competent evidence to establish that such symptoms were due to asthma. Medical diagnosis and causation involve questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained physician. Because he is not a physician, the veteran is not competent to make a determination that his asthma is the result of his military service or shortness of breath over three decades ago. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); Grottveit v. Brown, 5 Vet.
- 6
App. 91, 93 (1993). Additional1y, the VA clinical summary that reports that the veteran had experienced asthma since military discharge in 1968 is not competent evidence, as it is clearly based on a history supplied by the veteran, as that history is unsupported by the lack of post service medical evidence. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (holding that a bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional). Accordingly, there is no objective medical evideI,lce in the record of a relationship between the veteran's asthma and his military service. As such, service connection for asthma is not warranted.
In reaching this. decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. Gilbert v. Derwinsld, 1 Vet. App. 49 (1990). .
ORDER
Service connection for asthma is denied.
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
- 7